Silverstein was on his feet before Lang could sit. 'Before we begin that, Your Honor, the government has a motion to quash a subpoena served on an FBI agent and a subpoena duces tecum calling for the production of certain sensitive documents from the bureau.'
Was that the ghost of a smile Lang saw around the judge's lips? 'I am well aware all documents from the bureau are sensitive, Mr…'
'Forgive me, Your Honor, Silverstein.'
'Yes, well, what's the connection between a Drug Enforcement Agency prosecution and the FBI, Mr. Reilly?'
Lang knew better than to give the government time to mount a defense by showing his cards before he had to. 'The defendant believes that will become self-evident as this hearing progresses.'
'But, Your Honor,' Silverstein argued, 'the very point of our opposition to letting Mr. Reilly proceed with this, this circus, is that both the witness he has subpoenaed and the records he seeks are both irrelevant and potentially harmful to ongoing investigations.'
Judge Carver touched her lips with her pen, thinking. 'This is a nonjury hearing, Mr. Silverstein. I determine what is or is not relevant. You may object at the appropriate places. If you like, I can order the transcript sealed.'
A sealed transcript was not what Silverstein had in mind, but he knew better than to risk provoking the judge's impatience. He sat with a deflated, 'Very well, Your Honor.'
Round one to the defense.
The judge was looking at Lang. 'Mr. Reilly, you have a statement?'
'No, Your Honor, but I would like to make one at the conclusion of this hearing.'
'Very well. Proceed.'
Lang placed a hand on Larry's shoulder. 'We call Mr. Larry Henderson.'
Larry went to the witness stand with nervous steps, shoulders slumped as he swore to tell the truth. He sat as if the chair contained thorns rather than a cushion.
After the preliminary questions as to his name and residence, Lang asked, 'Do you recall any unusual incident the week before you were arrested?'
Larry nodded. 'Uh huh.'
'You'll have to give us a yes or no, Mr. Henderson,' Lang said gently. 'The court reporter can't get a nod or an uh huh.'
'Sorry. Yes, I did.'
'And that was?'
'Fella came onto the property, said he was lookin' f some kinda woodpecker.'
'A bird-watcher?'
'I guess. Had binoculars and all.'
'The binoculars would have allowed him a good look at your property, right?'
Lang paused a second and, as anticipated, Silverstein was on his feet. 'Objection! Calls for a conclusion.'
A point, if not a round, for the defense. The objection would serve only to emphasize those binoculars.
'Sustained. Mr. Reilly, try not to ask your client to speculate.'
'Yes, Your Honor.' Then, to Larry, 'Ever seen him before?'
Larry shook his head.
Lang pointed to the court reporter.
Larry took in a breath. 'Sorry. I ain't never spoke in court before. No, I never seen him before.'
'Since?'
Larry looked at him quizzically, not understanding the game in which he was participating. 'In the hall.'
Lang's voice dripped incredulity. 'In the hall? Here?'
'Right outside that door.'
'Your Honor, we have Special Agent Kurt Widner under subpoena. Would you have the marshal ask him to step in here?'
She nodded to the marshal.
Silverstein stood, one last attempt. 'Your Honor, I must renew my previous objection. As you noted earlier, this is a prosecution by the DEA, not the FBI…'
'And as I noted, Counselor, I will determine what is or is not relevant. Your continuing objection is noted.'
Widner preceded the marshal into the room, somewhat less rosy cheeked and cheerful than when Lang last saw him.
'Thass him!' Larry was pointing. 'Thass the same man.'
'You certain?' Lang asked.
Larry nodded vigorously. 'Absolutely.'
'Let the record reflect the witness has identified Special Agent Widner of the Atlanta office of the Federal Bureau of Investigation as the man 'bird-watching' on the defendant's property two days before the defendant was arrested. Your witness, Mr. Silverstein.'
The US attorney made a show of reviewing his notes before he said, 'No questions at this time, Your Honor, but we reserve the right to cross-examine Mr. Henderson later.'
'So noted. Another witness, Mr. Reilly?'
'The defense calls Special Agent Widner. As he is an employee of the government we ask we be allowed to cross-examine.'
'Granted.'
If Larry had been a nervous witness, Widner approached the witness stand with the reluctance of a man climbing steps to the gallows.
After the preliminary stating of his name and employment for the record, Lang got right down to business.
'You a bird-watcher, Agent Widner?'
The answer was sullen, almost hostile, just as Lang would have wanted it. 'Sometimes.'
'How long have you pursued that hobby? No, don't look at Mr. Silverstein. I want your answer.'
Now a hangdog demeanor. The man knew what was coming. 'Meybbe six months.'
Lang turned to face Judge Carver. 'Your Honor, I served a subpoena duces tecum on the government regarding a certain memo. I'd like it produced before we continue.'
Silverstein rose slowly. 'Again, Your Honor, we object as to relevance.' Dusty Roads tugged at his sleeve and they exchanged whispers. 'Plus as an interoffice communication, we contend it's privileged and not subject to production.'
Agent Widner and Silverstein were not the only people who had a good idea where all this was headed. Judge Carver leaned forward, hand extended. 'We need more, not less openness in government. The memo, Mr. Silverstein.'
Silverstein made a show of digging in his litigation bag before asking, 'May we have a brief recess, Your Honor? I'd like to confer with Mr. Reilly.'
The judge gave a half glance, half glare at both lawyers. 'For what purpose?'
This time it was Roads who responded. 'We think we have a very attractive offer for Mr. Reilly's client.'
The judge again looked from one lawyer to the other. 'Fine. Mr. Reilly, I want to remind you this court is not bound by any agreement as to sentence upon entry of a plea of guilty. I'm sure the same is true in the northern district where you practice.'
'Understood, Your Honor.'
'Five minutes, then.'
And she was gone.
It was almost surprising what a change the brief hearing had wrought in the dispositions of the government's lawyers. Both Silverstein and Roads were all smiles. Both extended their hands.
'Lang, we're prepared to reduce the charge from possession with intent to distribute to simple possession,' Silverstein said. 'Eighteen to twenty-four months, a reduction for participating in a rehab program, 10 percent off for good behavior and your man walks.'
'You're kidding,' Lang said. 'Nice try, having your 'bird- watching' special agent stumble onto my client's property but it won't wash. The fact one agency makes a discovery and another prosecutes the crime won't work,
